6.  At the time of the facts set out below the applicants resided in the United Kingdom on student visas. Their details are set out in the appendix.
7.  On 8 April 2009 the applicants were arrested, along with nine others, under the Terrorism Act 2000, as amended (“the 2000 Act”), in various locations in the North West of England. The arrests occurred in the context of Operation Pathway.
8.  Mr Sher was arrested at 6.35 p.m. on 8 April under section 41 of the 2000 Act (see paragraph 91 below) on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions.
9.  At around 10 p.m. a review of Mr Sher’s detention was carried out by a senior police officer. Mr Sher made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.
10.  At 7.40 a.m. on 9 April a notice (“TACT 5 form”) was served on the applicant’s solicitor, Mr Yousaf. The notice set out, inter alia, the following:
“You are hereby informed that
...
SULTAN SHER
has been arrested under the provisions of Section 41 of the Terrorism Act 2000 as it is reasonably suspected that he is or has been involved in the commission, preparation or instigation of acts of terrorism.”
11.  Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence and that he had no representations to make at that time.
12.  At 9.35 a.m. a further review of Mr Sher’s detention took place. Mr Sher was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination/analysis of anything with a view to obtaining evidence.
13.  At around 4 p.m., Mr Yousaf was provided with a copy of a pre-interview briefing document (“brief”). The third paragraph of the brief said:
“Your client has been arrested on suspicion of being concerned in the commission, preparation or instigation of an act of terrorism contrary to section 41 of the Terrorism Act 2000. Your client was informed that the arrest was necessary to allow the prompt and effective investigation of the offence. After caution your client made no reply. The arrest followed an Intelligence Operation conducted by the North West Counter Terrorism Unit.”
14.  It went on to list twelve names of people under arrest at different locations and said that their homes and associated premises were the subject of search, recovery and forensic scrutiny. Ten properties were the subject of such searches, although it was said that this was likely to increase “as further intelligence associating individuals to various premises come to the attention of the investigative team”. It added:
“Your client should be made aware that such examinations of scenes will include searches for bomb-making equipment, devices, explosives, composite material, recipes, documentary evidence, computers and IT storage devices and mobile telephones ...”
15.  It concluded:
“Your client will be asked questions relating to his access and association to various properties and individuals subject of this investigation. Your client will be asked about computer usage and methods of communication but most significantly, he will be asked questions relating to his knowledge or any information he might have in relation to the commission, preparation or instigation of acts of terrorism ...”
16.  At around 5 p.m. a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
17.  Shortly after 6 p.m. a first police interview began. Mr Sher was asked detailed questions about other people arrested, the various premises being searched and his knowledge of bomb-making equipment. He made no comment in response to these questions. The interview lasted for around one and a half hours in total.
18.  Shortly before midnight, a further review of Mr Sher’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
19.  Mr Sharif was arrested at 5.37 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, his detention was authorised to secure and preserve evidence and to obtain evidence by way of questions and the applicant was informed.
20.  At 11 p.m. a review of Mr Sharif’s detention was carried out by a senior police officer. Mr Sharif made no representations. His continued detention was authorised as necessary to secure and preserve evidence and to obtain evidence by questioning.
21.  At 7.40 a.m. on 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Sharif in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.
22.  At 9.50 a.m. a further review of Mr Sharif’s detention took place. Mr Sharif was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination/analysis of anything with a view to obtaining evidence.
23.  At 4.50 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
24.  At some point in the afternoon, Mr Sharif received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13-15 above). He was subsequently interviewed for around half an hour and was asked in particular about other people arrested. He made no comment.
25.  At 11.45 p.m. a further review of Mr Sharif’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
26.  Mr Farooq was arrested at 5.35 p.m. on 8 April under section 41 of the 2000 Act on suspicion of being involved in the commission, preparation and instigation of acts of terrorism. According to the custody record, the reasons for his detention were explained to him.
27.  At around 9.45 p.m. a review of Mr Farooq’s detention was carried out by a senior police officer. Mr Farooq made no representations. His continued detention was authorised as necessary in order to secure and preserve evidence and to obtain evidence by questioning.
28.  On 9 April, a TACT 5 form was served on Mr Yousaf in respect of Mr Farooq in the same terms as the form served as regards Mr Sher (see paragraph 10 above). Again Mr Yousaf confirmed that he was happy for further reviews of detention to take place in his absence.
29.  At 9.15 a.m. a further review of Mr Farooq’s detention took place. Mr Farooq was advised that his continued detention was believed to be necessary to obtain relevant evidence by questioning; to preserve relevant evidence; to await the results of examination or analyses of relevant evidence; and to secure the examination/analysis of anything with a view to obtaining evidence.
30.  At 5.40 p.m. a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
31.  At some point in the afternoon, Mr Farooq received a brief in almost the same terms as that received by Mr Sher (see paragraphs 13-15 above). A subsequent police interview lasted for around half an hour and Mr Farooq and was asked in particular about other people arrested. He made no comment.
32.  Shortly before midnight, a further review of Mr Farooq’s detention took place. His continued detention was deemed necessary for the reasons previously set out.
33.  Meanwhile, on 8 April 2009, the police applied for and were granted search warrants by the Manchester Magistrates’ Court in respect of a number of addresses connected with the applicants. The police officer making the application indicated that he had reasonable grounds for believing that the material was likely to be of substantial value to a terrorist investigation and that it had to be seized in order to prevent it from being concealed, lost, damaged, altered or destroyed.
34.  The relevant material was defined as:
“Correspondence, leaflets, posters, magazines, subscription forms, identification documents, travel documents, passports, maps, sketches, plans, telephone records, accommodation details, literature/books, vehicle documents in relation to use/control, correspondence in relation to other properties/lock ups/garages and their keys, receipts for purchased goods, records of religious/political beliefs, handwritten notes, receipts, invoices, order forms, delivery notes, adverts, travel information land sea and air. Computers, computer equipment, PDA’s software, hardware, digital storage, faxes, printers, scanners, copiers, printer paper, DVDs, CDs, CD Roms, video/audio cassettes, memory sticks, mobile phones, sim cards, evidence of purchase of mobile phones and registration and billing, credit cards, top-up cards, cash, cheque books, money transfer documents, financial documents, cameras/video equipments, photographs/negatives, communication devices, chemical or pre cursor materials, memorabilia/ornaments/flags, items to conceal or transport items, any item believed to be connected to terrorism ...”
35.  Search warrants were granted in those terms. The warrants included these words:
“Authority is hereby given for any constable, accompanied by such person or persons as are necessary for the purposes of the search, to enter the said premises on one occasion only within one month from the date of issue of this warrant and to search the premises ...”
36.  The search of Mr Sher’s home address was conducted over a ten-day period between 8 April and 18 April. The search at his place of work was conducted between 11 and 14 April.
37.  Mr Sharif and Mr Farooq shared an address. Their residence was the subject of a search between 8 April and 19 April.
38.  In relation to all of the properties that were searched, the police went to the property first thing in the morning and worked in shifts until about 7 p.m. They then closed up the property and it was cordoned off. They resumed their work at the property again the next morning, and worked in this way until the search was concluded.
39.  On 9 April the applicants were informed that an application would be made at the City of Westminster Magistrates’ Court for a warrant of further detention for the period of seven days beginning with their day of arrest; and that a hearing would take place on 10 April. The notice of the application and the hearing went on to explain:
“"Both yourself and your legal representative may make written or oral representations and attend a hearing, subject to the provision of Schedule 8 para 33(3) of the Terrorism Act 2000, which provides that the judicial authority may exclude you or your legal representative from any part of the hearing. Your legal representative has been informed by written notice of his, and your, right to attend the hearing, subject to the provision mentioned above. Police are seeking a Warrant of Further Detention for the period of seven days beginning with the time of your arrest because it is necessary in order to obtain or preserve relevant evidence or pending the result of an examination or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence relating to the commission of an offence or offences under the provisions of Section 40(1)(a) or which indicates you are a person who falls within the provisions of Section 40(1)(b) of the Terrorism Act 2000.”
40.  The application to the City of Westminster Magistrates’ Court contained, at section 9 under a heading “Further Enquiries to be made”, a lengthy description of the police operation and the current state of play in the ongoing investigation. The section 9 material was not provided to the applicants or Mr Yousaf.
41.  The hearing was fixed for 9.30 a.m. on 10 April 2009. Part of the hearing was closed to allow the District Judge to scrutinise and ask questions about the material in section 9. The applicants and Mr Yousaf were therefore excluded from this part of the hearing. They made no complaint about the procedure at that time.
42.  At the open part of the hearing, a senior police officer made an oral application for further detention which was reduced to writing and a copy of the note was provided to the applicants and to Mr Yousaf. The written note explained why the section 9 material was being withheld and provided some details about the police operation. It also gave details of all the property seized so far and explained that the investigation contained:
“intelligence and evidence that support[ed] the premise that [the applicants] through significant association with other detained persons [were] conspiring to plan a terrorist attack within the UK.”
43.  Mr Yousaf cross-examined the police officer during the hearing and did not complain about the applicants’ detention or suggest that they should not be further detained.
44.  At 1.20 p.m. the District Judge granted the warrants for further detention until 15 April. The formal notification of the decision explained:
“On application by a police officer of at least the rank of Superintendent, and having taken account of representations made by or on behalf of the person named above concerning the grounds upon which further detention is sought, I am satisfied that in accordance with paragraphs 30 and 32 of Schedule 8 to the Terrorism Act 2000, that:
...
(ii) the investigation in connection with which the person is detained is being conducted diligently and expeditiously;
(iii) there are reasonable grounds for believing that the further detention of the person named above is necessary to obtain relevant evidence whether by questioning him or otherwise or to preserve relevant evidence, or pending a result of an investigation or analysis of any relevant evidence or of anything the examination or analysis of which is to be or is being carried out with a view to obtaining relevant evidence...”
45.  On 10 April 2009 Mr Sher was provided with a second brief. It indicated that one of the other arrested suspects had said that he had lived with Mr Sher at two addresses and that he had knowledge of another arrested suspect. This document formed the basis of an interview with Mr Sher which began shortly after 6 p.m. and concluded one and a half hours later. During the interview, Mr Sher was asked about his acquaintance with some of the other arrested suspects and his familiarity with some of the searched premises. He made no reply to the questions put.
46.  No interviews were carried out over 11 and 12 April, which was the weekend of Easter.
47.  On 13 April Mr Sher received a third brief which contained details of material found at various searched properties which could allegedly be linked to him. The brief was used as the basis of a further series of interviews which began at around 1 p.m. and lasted for about four hours in total. Again Mr Sher answered no comment to the points put to him.
48.  On 14 April 2009 Mr Sher and his solicitor were provided with a fourth brief. It identified a number of items which were said to be “areas of interest” to the investigation, including: text messages between detainees; maps outlining designated areas of interest which significant numbers of the public would be expected to frequent; a detailed handwritten document depicting a militaristic zone abroad; access to and movements around the security industry including access to airports; mobile telephone use; international travel, including visits to Pakistan, and the purpose of travel; suspected reconnaissance at public locations; meetings of significance; and money transfers abroad. The document went on to say:
“Evidence exists linking your client to persons currently in custody. Direct evidence exists of the detainees meeting on a number of occasions both in Liverpool and Manchester. Mobile telephone pictures exist illustrating further associations between those persons arrested on this operation.
The purpose of this briefing is to broadly outline the police investigation and its strong belief that preparatory acts for an attack plan were in place. A significant amount of exhibits are still currently being assessed and may form part of further pre-interview briefing.”
49.  Again, the document provided the basis of an interview with Mr Sher which began shortly before 1 p.m. and lasted for about an hour and twenty minutes. Mr Sher declined to comment.
(b)  Mr Sharif
50.  On 10 April 2009 Mr Sharif was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Sharif which began at around 4 p.m. and concluded one and a half hours later. During the interview, Mr Sharif was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.
51.  Again, no interviews were carried out over the Easter weekend of 11 and 12 April.
52.  On 13 April Mr Sharif received a third brief. It provided details of material found at his place of residence. The document was used as the basis of a further series of interviews which began at around 1.30 p.m. and lasted for about three hours in total. Mr Sharif answered no comment to the points put to him.
53.  On 14 April 2009 Mr Sharif was provided with a fourth brief. It contained details of information provided by other detainees and otherwise reproduced the content of Mr Sher’s fourth brief (see paragraph 48 above). It provided the basis of an interview with Mr Sharif which lasted for about three hours. Mr Sharif declined to comment.
(c)  Mr Farooq
54.  On 10 April 2009 Mr Farooq was provided with a second brief. It was based on information provided by some of the other detainees and concerned his acquaintance with them. It formed the basis of an interview with Mr Farooq which began at around 4 p.m. and concluded just over an hour later. During the interview, Mr Farooq was asked about his acquaintance with some of the other arrested suspects and made no reply to the questions put.
55.  Again, no interviews were carried out over the Easter weekend of 11 and 12 April.
56.  On 13 April Mr Farooq received a third brief which set out details of exhibits recovered from properties linked to him. The briefing document was used as the basis of a further series of interviews which lasted for just over two hours. Again Mr Farooq answered no comment to the points put to him.
57.  On 14 April 2009 Mr Farooq was provided with a fourth brief in terms almost identical to that provided to Mr Sharif (see paragraph 48 above). It provided the basis of an interview with Mr Farooq which lasted for just over an hour. Mr Farooq declined to comment.
58.  On 14 April 2009 the applicants and Mr Yousaf were informed that an application had been made to the City of Westminster Magistrates’ Court to extend the warrants of further detention for a further seven days. Notification of this application was in similar terms to the earlier notice. Section 9 of the application, which was withheld from the applicants, contained detailed information about the background to the investigation, the associations of the applicants, the scenes that had been searched, the forensic analysis, and the phones, computers, DVDs and documents that had been recovered. Under section 10, there was a list of bullet points under the heading “Reason Detention is Necessary Whilst Enquiries Made”, which included the need to await the conclusion of forensic searches and examination and the outcome of analyses instructed and the need to question the applicants concerning items found in their possession or at premises linked with them.
59.  The application was heard on 15 April at around 9.30 a.m. and the applicants attended by video link. The hearing was entirely open. A senior police officer made the oral application, which had again been reduced to writing and provided to the applicants and Mr Yousaf. He said that the police operation in question was the most significant counter-terrorism investigation since a plot in 2006 to cause explosions on aeroplanes through the use of liquid bombs; and that the North West Counter Terrorism Unit had never undertaken an investigation of this size. He explained that searches had taken place at various properties and that only one scene had been completed and released. Three were awaiting results of forensic results and seven scenes were still being searched. A total of 3,887 exhibits had been recovered to date. Priority was being given to exhibits such as documents, computers, mobile phones, sim cards and data storage devices. A large number of computers were being searched as well as DVDs and CDs. 127 phone or sim cards had been recovered and were being forensically examined, some with large memories. The application concluded by seeking the extension to the warrant on the grounds that it was necessary to obtain relevant evidence by questioning, to preserve relevant evidence, and pending the result or analysis of any further evidence.
60.  At around 10.15 a.m. the Senior District Judge granted the extensions sought. The formal notification in relation to each applicant confirmed in writing that the judge was satisfied that the investigation was being conducted diligently and expeditiously and that there were reasonable grounds for believing that the further detention of the applicants was necessary to obtain relevant evidence. The warrants were extended by seven days, until 22 April 2009.
61.  Mr Sher was not interviewed on 15, 16, 17 or 18 April. However, on 18 April, further briefs were provided. The documents referred to his arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:
“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”
62.  The document referred specifically to a wordpad document recovered from a pen drive (“the Buddy email”), which appeared to be a personal email discussing the weather and plans for an Islamic wedding “after 15th and before 20th of this month”. The police believed this to be code and considered that it suggested an imminent attack. The document continued:
“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”
63.  It identified various maps found with locations highlighted and photographs of public places in the North West of England. There was also a reference to a mobile phone belonging to another of the suspects which was found to contain Mr Sher’s telephone number.
64.  The briefing formed the basis of a series of interviews on 19 April in which specific questions were put as to Mr Sher’s knowledge of these documents and the other materials. No answers were forthcoming. The total duration of the interviews was about four and a half hours.
65.  On 20 April there was a final round of briefing documents, again referring to emails and computer communications, in particular via a specific and identified user name belonging to Mr Sher. In a subsequent interview lasting around one and a quarter hours, Mr Sher made no comment.
(b)  Mr Sharif and Mr Farooq
66.  Neither Mr Sharif nor Mr Farooq was interviewed on 15, 16 or 17 April. A further brief was provided on 18 April to each. The document summarised information provided by some of the other detainees; set out details of significant text messages received and sent from mobile telephones which were either in the applicants’ possession at the time of their arrest or discovered during the search of his residence; and gave details of other documents found during the searches, including maps of Manchester with locations highlighted. The briefing formed the basis of interviews with Mr Sharif and Mr Farooq on 18 April lasting for a total of almost three hours and one and half hours respectively. At the beginning of the interviews, Mr Sharif and Mr Farooq were told that the police believed that they had been conspiring with others to cause explosions. No responses were forthcoming during the interviews.
67.  On 19 April the applicants and their solicitor received a final briefing document in similar terms in each case. The document referred to their arrest on 8 April on suspicion of commission, preparation and instigation of terrorism and continued:
“... It has been made apparent throughout the interview process, including safety interview conducted ... and in warrant applications, that we strongly believe that your client was involved in an attack plan.”
68.  The document referred to the Buddy email (see paragraph 62 above) and continued:
“Specifically we believe that your client has been part of a conspiracy with others currently in custody to murder with explosives. He is also suspected of possessing articles considered to be of use in terrorist activity.”
69.  In subsequent interviews with each applicant lasting around one and a quarter hours, neither made any comment.
70.  No interviews took place on 20 April.
71.  On 21 April 2009 the applicants were released without charge and were served with deportation orders. They were then detained under immigration legislation and on 22 April 2009 were transferred into immigration service custody pending deportation.
72.  On 26 June 2009 the applicants commenced two sets of judicial review proceedings. In one (“the first action”), they sought to challenge the deportation orders. That action does not form the basis of their application to this Court. The other (“the second action”) was lodged against five defendants: (1) Greater Manchester Police (“GMP”); (2) West Yorkshire Police (“WYP”); (3) the City of Westminster Magistrates’ Court; (4) Manchester Magistrates’ Court; and (5) the Home Secretary. In their claim form, the applicants sought to challenge the legality of their treatment between 8 and 21 April. They contended in particular that their rights under Articles 5 §§ 2 and 4 and 6 § 1 of the Convention had been breached because they had not been provided with sufficient information at the time of arrest or detention as to the nature of the allegations against them; and because of the closed procedure permitted in hearing applications for warrants of further detention. They further argued that the searches of their homes were unlawful because the search warrants had been granted in terms that were too wide; because the terms of the warrants had been breached in that although the police had permission to undertake a search on one occasion they had actually occupied the premises for many days; and because of the seizures themselves.
73.  On 21 July 2009 permission to apply for judicial review in the second action was refused by the Divisional Court. The judge summarised the remedies sought:
“3.  The remedies sought by the claimants are extensive. They are set out in section 6 of the Claim Form in these terms:
‘(1) A declaration that the arrest of all three claimants by the first defendant was unlawful.
(2) A declaration that the detention of all three claimants authorised by the second defendant was unlawful.
(3) A declaration that the detention of all three claimants authorised by the warrants of further detention, and the extension of those warrants, issued by the third defendant was unlawful.
(4) A declaration that the procedure under Schedule 8 of the Terrorism Act 2000 for the hearing of applications for warrants of further detention is incompatible with Article 5(4) of the European Convention on Human Rights.
(5) An order quashing the search warrants at the home addresses of the claimants.
(6) A declaration that ...the issuing of ... [search warrants for the home addresses of the applicants] by the fourth defendant was ... unlawful.
(7) A declaration that the entry search and seizures at home addresses of the claimants was unlawful.
(8) A mandatory order requiring the return of all items seized in execution of the search warrants forthwith together with any copies howsoever made or held by the defendants and their agents, and that no use be made of any knowledge obtained as a result of any examination or material unlawfully seized.
(9) Any other relief the court considers appropriate.
(10) Damages.
(11) Costs.’”
74.  As regards the applicants’ complaints concerning the provision of information from the police about the reasons for their arrest and detention, the police argued that a private law remedy for wrongful arrest and wrongful imprisonment was open to the applicants and should have been pursued. The applicants insisted that judicial review was an appropriate remedy in respect of their complaints.
75.  The judge held that judicial review was not the appropriate forum. The issues which arose where questions of fact which were not appropriate for judicial review proceedings. He explained:
“79.  First, there is a pre-existing private law remedy available to these claimants against GMP and WYP. This is not a case where, if the claimants were not entitled to pursue judicial review proceedings, they would be left without a remedy. There can be no question of injustice if these proceedings were transferred to the QB [Queen’s Bench Division]: indeed, it is only if such a transfer occurred that the defendants could exercise their right to trial by jury. 80.  Secondly, these claims involve potentially complex disputes of fact ... [S]uch fact-sensitive issues are wholly inappropriate for judicial review proceedings. 81.  Thirdly, the claims being made by the claimants are historic ... There is therefore no reason for these proceedings to take up the judicial resources of the Administrative Court, which are required for the numerous urgent and prospective judicial review proceedings issued in the High Court every week. And although it is said that these issues are of public importance, that is not, without more, a reason to keep a fact-sensitive dispute, where there are obvious alternative remedies, in the Administrative Court. 82.  I do not consider that the claimants’ complaint that there would be difficulties of public funding if the matter was transferred to the Queen’s Bench Division, or that the claimants may then be the subject of an application for security for costs, can have any relevance to the question of the proper forum for these claims. Judicial review proceedings do not exist in order for claimants to circumvent the usual rules relating to civil litigation and the funding and costs thereof. It would be wholly inappropriate to allow judicial review proceedings to become some sort of ‘costs-free’ civil jurisdiction, which gets a claimant to the same result as his private law remedies (regardless of the nature of the underlying dispute), but without the usual costs risks. I note too that the claimants say that public funding has not been readily available for these proceedings either, so that does not appear to be a material consideration in any event. The claimants would not have to return to the UK to give evidence in their private law action, which could instead be provided by way of video-link ...”
76.  He concluded that the matters raised ought to be addressed in an ordinary private law action in which the potentially complex factual arguments could be properly determined. However, he added the following caveat:
“84.  I make plain that this conclusion is subject to one point. If the claimants were able to demonstrate that there were other parts of these claims which were arguable, and in respect of which judicial review proceedings offered them their only remedy, then in circumstances where the underlying issue was the same – namely, whether or not the claimants were given sufficient information – it may be a pragmatic and flexible solution for all such matters to be dealt with together in one set of judicial review proceedings. Accordingly, it is important in the subsequent sections of this Judgment to identify whether or not there are any such arguable judicial review claims.”
77.  He turned to consider the arguability of the judicial review claims against the police, in the event that he was wrong as to the appropriate forum. In that case, he said, the issue was whether, on the material before the court, permission to seek judicial review should be granted on the basis that no-one properly directing himself as to the relevant law could reasonably have reached the decision to arrest and detain the applicants (what he called a typical Wednesbury argument).
78.  The judge referred, inter alia, to this Court’s judgment in Fox, Campbell and Hartley v. the United Kingdom, 30 August 1990, Series A no. 182. He examined the lawfulness of the decision to arrest and commented as follows:
“91.  Each claimant was told that he was being arrested under section 41 of the Terrorism Act 2000 because the officer arresting him reasonably suspected that he was a terrorist. In my judgment, nothing more was required at that moment. As the decision in Fox and Others makes plain, a general statement of that sort will not usually amount to a breach of Article 5.2, provided of course that, thereafter, further information as to how and why such suspicions are held is promptly given to the suspect. For the reasons given in the next section of this Judgment, I am in no doubt that, on the material available to the court, such further information was given promptly to the claimants.”
79.  In the judge’s view, the applicants could only challenge the lawfulness of their actual arrest by way of judicial review proceedings if their case was that the arresting officers did not honestly suspect them of being terrorists or that such belief was unreasonable. Since the applicants did not allege the absence of reasonable suspicion, the lawfulness of the arrests could not be impugned and the application to seek judicial review of the decision to arrest them was “hopeless”.
80.  Concerning the lawfulness of the decisions to detain the applicants for the first forty-eight hours, the judge said:
“94.  The custody logs demonstrate that, during the first 38 hours of the claimants’ detention, the reviews were carried out at 12 hourly intervals and that all the appropriate and relevant information was taken into account. The records also reveal that neither the claimants nor their solicitor took any point as to their continuing detention during this period of 38 hours or so. On the face of the documents, therefore, I consider that it is impossible to say that any sustainable Wednesbury case as to absence of information emerges at all. 95.  That view is confirmed by a consideration of the documents provided to the claimants during this early period ... [O]n 9th April 2009 the claimants were given [the first brief] and, having had a chance to consider the material there contained, they were interviewed at length about it. From this information, the claimants would have been in no doubt that they were being detained under suspicion of being involved, with other named conspirators, in a plan to plant a terrorist bomb. In all the circumstances, it seems to me that this was sufficient information to satisfy Article 5.2 and Article 5.4, at least at that early stage.”
81.  In response to the applicants’ allegation that their detention after 10 April was unlawful because it was on the basis of information solely derived from closed hearings, the judge emphasised that only part of the hearing on 10 April was closed and that the hearing on 15 April was entirely open. He considered that the applicants were being provided with sufficient information during this period to justify their continuing detention. He therefore viewed this part of the claim for judicial review as “fundamentally flawed”. He noted that counsel for the applicants repeatedly asserted that the basis for the applicants’ detention had never been explained to them, without ever attempting to engage with or address the contents of the various documents which had been provided to them. The judge continued:
“98.  ... [I]t is plain from all that material that the allegations being made, and the questions being asked, were becoming more and more specific as the days passed, and that by the end of the 13 day period of detention, the claimants were each aware that they were being detained on suspicion of being involved, with other named co‑conspirators, to cause imminent bomb explosions at certain specified public locations in the North West of England. 99.  [Counsel for the applicants] submitted that the claimants should have been given detailed information at the outset of their detention, with a level of specificity that was akin to the information in an indictment ... I consider that that submission is wrong in principle. The whole purpose of those parts of the ... [2000 Act] is to allow suspects to be detained after arrest without being charged because, at the time of their arrest, and perhaps for many days thereafter, it may not be possible to formulate charges against them as specifically as would appear on an indictment. That is precisely why Parliament has said that suspects can be detained without charge for up to 28 days, in order to allow further information as to the proposed charges to be obtained. Provided that sufficient information is provided to allow those detained under the [2000 Act] to challenge the lawfulness of that detention, if that is what they wish to do, then that is sufficient to satisfy both Article 5.2 and Article 5.4. 100.  Of course ... the time will always come when more specific details of the suspected offences must be provided to the detainees. In this case, for the reasons that I have given, I consider that sufficient information was provided to the claimants to allow them to know why they were being detained and to challenge the lawfulness of the decision to detain them. They knew who the other conspirators were alleged to be, what the suspected crime was (intending explosions in particular public places in the North West), and what at least some of the evidence was ... that directly linked them to these allegations.”
82.  The judge concluded in respect of the provision of information that if, contrary to his view, judicial review proceedings against the police were appropriate, he would refuse permission as the claim was not arguable on the material provided. He accepted that the question whether the decisions of the City of Westminster Magistrates’ Court to issue warrants of further detention were unlawful because inadequate information had been provided to the applicants about the reasons for their continued detention was potentially a matter of public law. However, he was satisfied that the claim was “fanciful” and unarguable since sufficient information was provided in the documents and the open hearings for the applicants to know why they were being detained.
83.  In respect of allegations that the police had gone outside the terms of the search warrant by executing it over a number of days and of complaints about the seizures themselves, the police again argued that judicial review proceedings were not appropriate and that private law proceedings should have been pursued by the applicants. The judge found this submission to be unarguably correct.
84.  In any event, the judge held that even if these were matters for judicial review, there was no basis for concluding that the claim was arguable. He considered that the words “on one occasion” in the warrant authorised the police go to the property in question, undertake the search, and, when they had concluded that search, restore the property to the control of its occupiers. That was precisely what had happened here. The fact that the “occasion” lasted for more than one calendar day was irrelevant since there was nothing temporal about the word “occasion”. Further, the complaint that certain seized items had not been returned could and would have been resolved had the applicants followed the judicial review pre‑action protocol. Again, the judge concluded that if, contrary to his view, judicial review proceedings were appropriate, he would refuse permission as the claim was “hopeless”.
(b)  The scope of the search warrants
85.  As to the complaint that the warrants were too wide, a complaint which the judge found was amenable to judicial review, he observed that the criticism appeared to be that because the warrants contained a lengthy list of references to common household items, such a list must, of itself, be too extensive or onerous. He rejected that submission for three reasons. First, he considered the assertion to be too general since a list that was too onerous in one case might be entirely appropriate in another. He continued:
“109.  Secondly, in a situation like this, the police will be unlikely to know precisely what they are looking for. So they will identify those sorts of items which, in the past, have been relevant to searches such as this. Thus there are specific references to travel documents, computers, books, DVDs and the like. But it would be unrealistic for this court now to say, over a year later, that one or two of these items might, with hindsight, have been irrationally included in a list produced at the outset of a major terrorism investigation. 110.  Thirdly, the court must recognise, in undertaking these urgent investigations, the police are not hamstrung by an artificially restricted list of items that they can investigate and/or seize. It would be contrary to the public interest if, on a search of premises in the context of an ongoing and urgent terrorism investigation, the police were inhibited because item A was on the list but item B was not. There is a clear public interest in ensuring that, within properly defined limits, the list is not restricted.”
86.  He concluded that it was “inevitable” that in cases like this the warrants would be in relatively wide terms, explaining that the need to ensure public safety under the Terrorism Act 2000 required nothing less. He accordingly rejected the submission that the warrants were in terms that were too wide or that there was an arguable case that the decision to issue the warrants in those terms was unlawful or irrational.
87.  Finally, the judge addressed the claim that the procedure for hearing applications for warrants of further detention the 2000 Act was incompatible with section 5 § 4 of the Convention because although it allowed for a closed procedure, there was no system of special advocates in place. He found this to be a matter which, if it was appropriate to grant permission, would justify judicial review proceedings.
88.  However, he considered the claim to be unarguable. He referred to the judgment of the House of Lords in Ward (see paragraphs 104-105 below) which, he said, made clear that the closed hearing procedure was compatible with the Convention. He therefore rejected the submission that the provision of a special advocate was essential to ensure the fairness of the proceedings. He further noted that the applicants had not explained why the absence of express provision in the 2000 Act for a special advocate led inevitably to the conclusion that the scheme was incompatible with Article 5 § 4, since the District Judge could provide the necessary critical scrutiny in the interests of the person who was the subject of the proceedings. In any event, he held that such an advocate could have been appointed by the District Judge had such a course been considered necessary in the interests of justice. He noted that the applicants had not requested the appointment of a special advocate at either hearing. Finally, the judge considered the applicants’ case to be wrong on the facts since the warrants of further detention were not made entirely on the basis of closed information: only part of the 10 April hearing had been closed and the 15 April hearing had been entirely open. The claim for permission therefore failed both in principle and on the facts.
89.  In September 2009, all three applicants voluntarily returned to Pakistan.